Four Justices, One Mega-Publisher, and a Supreme Court Copyright Debacle

This is not some small publisher that happens to have multimillion-dollar contracts with several Supreme Court Justices. It is the world’s largest trade book publishing group, with a vast catalog of copyrighted works. Its parent corporation, Bertelsmann, has substantial interests throughout the media and entertainment industries. Its sister company, BMG, is one of the world’s largest music companies, representing millions of musical compositions.

These businesses are not peripheral participants in the copyright ecosystem. They are among its most important commercial actors.

And, as you might expect, Vetter is not the only copyright litigation involving the Bertelsmann companies. Not even close. And the stakes in some of those other cases are much higher.

Consider just one issue: AI training. In March 2026, BMG sued Anthropic in California, alleging that hundreds of its copyrighted song lyrics had been unlawfully used to train generative AI systems. Penguin Random House authors have also played prominent roles in AI-training litigation. Andrea Bartz, the lead plaintiff in the landmark Bartz v. Anthropic case, is a Penguin Random House author (and the company itself was entitled to claim a share of the gigantic $1.5 billion settlement in this case). So are John Grisham, George R. R. Martin, and Jodi Picoult (and many others)—all named plaintiffs in the pending, massive In re OpenAI litigation in the Southern District of New York.

So, it is not hard to imagine important copyright litigation, possibly dealing with AI training, involving Penguin Random House or BMG reaching the Supreme Court. What happens then? If the four Justices recuse themselves, as they did in Vetter, the Court will again lack a quorum. We would be left with the extraordinary situation where some of the country’s most important copyright disputes cannot receive Supreme Court review because too many Justices have lucrative commercial relationships with a sprawling media group.

That alone is a serious institutional problem.

But the difficulty extends much further than that. What if another AI-training case, even one that does not involve BMG or Penguin Random House or even their authors, reaches the Supreme Court? Presumably, those four Justices would not recuse themselves.

Yet such a case will probably require the Court to address many core questions—such as the transformative nature of AI training, the importance of training licenses, and the validity of the market dilution theory. These questions could have enormous consequences for all AI-training cases and could massively affect Penguin Random House and BMG.

So, we arrive at an uncomfortable situation: the Justices may be unable to hear cases directly involving their publisher but remain free to decide comparable cases that could substantially affect the same publisher’s commercial interests.

Of course, we should not take this argument to an absurd extreme. Judges routinely decide cases that have some indirect effect on industries in which they have some financial interests. But surely there is a difference between having an incidental financial interest in an industry and receiving millions of dollars from a private company whose business may be substantially affected by the legal rules one is asked to announce.

And this brings us to the deeper problem: the legitimacy of the Court itself.

When Copyright’s Judges Are Copyright’s Beneficiaries

The problem is not merely that four Justices have lucrative business relationships with one publishing behemoth. It’s that they’ve become multimillion-dollar beneficiaries of the very copyright system they’re supposed to impartially adjudicate.

As we know, copyright law is not simply a mechanism for ensuring that authors and publishers receive as much money as possible. Instead, as the Supreme Court itself noted, it “reflects a balance of competing claims upon the public interest.”

When Justices receive millions of dollars from exploiting their own copyrighted works, they become financially invested in one side of that broader policy landscape. Even if it doesn’t technically require them to recuse themselves, the appearance problem is glaring. Those Justices collect millions of dollars under contracts with a specific company whose interests frequently come before federal courts.

At some point, the magnitude changes the nature of the relationship. A modest royalty check looks like incidental income from intellectual activity. A multimillion-dollar book deal looks like a major commercial relationship. And it is perfectly reasonable for the public to wonder whether those relationships matter.

Consider, for example, Justice Sonia Sotomayor.

In my view, Sotomayor is an exceptional, important, and brilliant Justice, bringing a distinctive voice and perspective that the Court otherwise might lack. She is also arguably the most experienced of the sitting Justices in copyright law, having practiced intellectual property law before serving on the Southern District of New York and the Second Circuit.

For many years on the Supreme Court, she did not author its major copyright opinions. More recently, however, she wrote the majority opinion in Andy Warhol Foundation v. Goldsmith and a concurrence in Cox Communications v. Sony Music Entertainment. In both, she advanced positions relatively protective of copyright owners. I actually do not necessarily disagree with her. I supported the result in Warhol, although I found its reasoning problematic. And I was very sympathetic to her analysis in Cox.

I’m obviously not suggesting that her book income influenced either opinion. But why should actual corruption be the standard? As noted, since joining the Court, Sotomayor has received more than $4 million in book income from Penguin Random House and its predecessor companies. During that time, she has published multiple books with the publisher. She continues to participate in promotional events for her books, actively supported and publicized by Penguin Random House. This is an ongoing, meaningful business relationship, involving significant labor and significant sums of money, between a prominent Justice and the largest trade book publisher in the U.S. and in the world. During that time, Sotomayor has authored and joined major opinions addressing the scope of copyright protection, including questions with obvious economic implications for copyright owners and their publishers.

Isn’t there something deeply uncomfortable about this arrangement, even if everything is entirely lawful?

This is fundamentally a question of public confidence. Judicial legitimacy requires more than the absence of demonstrable bribery or misconduct. It requires that the public have good reason to believe that cases are being decided independently, without significant financial relationships casting doubt on the process. The appearance of impropriety, after all, is as important as the actual commission of improper acts when it comes to legitimacy.

And to state the obvious: No, none of this is intended to diminish the serious ethics controversies involving Justices Thomas and Alito, including the revelations about undisclosed luxury travel and questions about recusal. Those controversies deserve sustained scrutiny in their own right. Pointing to the problems created by the Justices’ publishing relationships is not an excuse for anyone else’s actions. The Supreme Court seems remarkably capable of having more than one ethics problem at the same time.

In fact, maybe that’s what makes this situation so troubling. Unlike some of the other controversies, the publishing arrangements are largely out in the open. Everything is seemingly above-board.

And yet four Justices have just been unable to participate in a significant copyright case because of their connections to a publishing conglomerate. Meanwhile, those same relationships may raise legitimate concerns about the appearance of impartiality when the Justices do participate in other copyright disputes.